Law Commons^™

Gandhi’S Prophecy: Corporate Violence And A Mindful Law For Bhopal, Nehal A. Patel

Nehal A. Patel

AbstractOver thirty years have passed since the Bhopal chemical disaster began,and in that time scholars of corporate social responsibility (CSR) havediscussed and debated several frameworks for improving corporate responseto social and environmental problems. However, CSR discourse rarelydelves into the fundamental architecture of legal thought that oftenbuttresses corporate dominance in the global economy. Moreover, CSRdiscourse does little to challenge the ontological and epistemologicalassumptions that form the foundation for modern economics and the role ofcorporations in the world.I explore methods of transforming CSR by employing the thought ofMohandas Gandhi. I pay particular attention to Gandhi’s critique ofindustrialization and principle of swadeshi (self-sufficiency) …

Promoting Inclusion Through Exclusion: Higher Education's Assault On The First Amendment, Adam Lamparello

Adam Lamparello

To obtain a meaningful educational experience and achieve the benefits of a diverse student body, students should confront beliefs they find abhorrent and discuss topics that bring discomfort. As it stands now, universities are transforming classrooms and campuses into sanctuaries for the over-sensitive and shelters for the easily-offended. In so doing, higher education is embracing a new, and bizarre, form of homogeneity that subtly coerces faculty members and students into restricting, not expressing, their views, and creating a climate that favors less, not more, expressive conduct. This approach undermines First Amendment values and further divorces higher education from the real …

A Constitutinal Analysis Of The Ncaa’S New Autonomous Governance Model And Its Effects On Student Athletes, Non-Athletes, And Professors – Is The Termination Of Uab’S Football Program Just The Beginning Of Things To Come?, Tyler N. Wilson

Tyler N Wilson

No abstract provided.

After Citizens United: Extending The Liberal Revolution To The Multinational Corporation, Daniel J.H. Greenwood

Daniel J.H. Greenwood

This Article proposes several routes to reverse Citizens United, the Supreme Court case holding that corporate campaign spending is “speech” protected by the First Amendment.

The core problem of Citizens United is that corporations are illegitimate participants in our politics. Corporate law requires corporate officers to pursue the corporate interest. They are thus disqualified from considering the central political questions of a democratic capitalist country: defining the rules of the market (which define corporate interests) and balancing profit against other, more important, values.

The high road to fixing Citizens United is a constitutional amendment to extend the fundamental insights …

The Shaky Ground Of The Right To Be Delisted, Miquel Peguera

Miquel Peguera

It has long been discussed whether individuals should have a “right to be forgotten” online to suppress old information that could seriously interfere with their privacy and data protection rights. In the landmark case of Google Spain v AEPD, the Court of Justice of the European Union addressed the particular question of whether, under EU Data Protection Law, individuals have a right to have links delisted from the list of search results, in searches made on the basis of their name. It found that they do have this right – which can be best described as a “right to be …

“To Promote The General Welfare” Addressing Political Corruption In America, Bruce M. Owen

Bruce Owen

Systemic (but lawful) political corruption reduces well-being and equity in America. Madisonian democracy is no longer capable of containing such corruption. Proposals currently on the table to stem corruption are unlikely to be effective and tend to undermine basic rights. This essay describes a new approach—regulating the output of corrupted legislative and administrative processes, rather than the inputs. Providing for substantive ex post review of direct and delegated legislation would be far more protective of the “general welfare” of the People than other reforms, while no more or less difficult to implement. Supporting an umpire proposal may be a dominant …

Congressional Due Process, Andrew M. Wright

Andrew M Wright

This article identifies significant deficiencies in Congress’s investigative practices. Consequences of congressional scrutiny can be profound, yet the second Congress calls, almost none of the safeguards of the American legal system are present. I argue such practices demonstrate institutional indifference to constitutional due process norms. The article highlights differences between congressional and judicial proceedings with respect to the safeguards of witnesses and targets. The purpose of congressional inquiry fundamentally differs from adjudication, and therefore does not call for the full complement of procedural rights afforded in judicial proceedings. Congress seeks facts and expertise to inform legislative judgments that will have …

The Doctrinal Toll Of "Information As Speech", Kyle Langvardt

Kyle Langvardt

The courts over the past two decades have reached a near-consensus that computer code, along with virtually every flow of data on the Internet, is “speech” for First Amendment purposes. Today, newer information technologies such as 3D printing, synthetic biology, and digital currencies promise to remake whole other spheres of non-expressive economic activity in the Internet's image. The rush to claim First Amendment protections for these non-expressive but code-dependent technologies has already begun with a lawsuit claiming First Amendment privileges for the Internet distribution of 3D-printable guns. Many similar suits will surely follow, all pursuing the common dream of a …

Rethinking The Context Of Hate Speech Regulation, Robert Kahn

Robert Kahn

In this essay I review Michael Herz and Peter Molnar (eds.) The Content and Context of Hate Speech: Rethinking Regulation and Responses (Cambridge University Press 2012). As I show in the review, the Herz and Molnar volume advances our understanding of comparative hate speech regulation in three ways. First, the essays suggest that local context has a role to play in understanding, assessing, and applying hate speech regulations, even in an age when online hate speech is pressuring states and regions to reach common solutions to these problems. Second, the essays rebut the commonly held premise that the United States …

A Fourth Amendment Framework For The Fee Exercise Clause, Adam Lamparello

Adam Lamparello

This article proposes a paradigm for resolving disputes under the free exercise clause that is analogous to the framework used by the court under the fourth amendment when balancing privacy rights against investigatory powers of law enforcement. In its Fourth Amendment jurisprudence, the Court provides varying degrees of protection to privacy – and imposes different evidentiary requirements on law enforcement – depending on the context in which privacy is affected, the intrusiveness of a particular search, and the asserted governmental interests. For example, privacy receives the strongest protections in areas such as the home, thus requiring law enforcement to have …

From Reynolds To Lawrence To Brown V. Buhman: Antipolygamy Statutes Sliding On The Slippery Slope Of Same-Sex Marriage, Stephen L. Baskind

Stephen L Baskind

In 2003 in Lawrence v. Texas (striking Texas’ sodomy law), Justice Scalia predicted in his dissent the end of all morals legislation. If Justice Scalia is correct most, if not all, morals-based legislation may fall. For example, in recent years state laws prohibiting same-sex marriage have fallen to constitutional challenges. Ten years after Lawrence in 2013, a Utah Federal District Court in Brown v. Buhman, though feeling constrained by the 1878 Reynolds case (which rejected a First Amendment challenge to an antipolygamy law), nevertheless at the request of a polygamous family concluded that the cohabitation prong of Utah’s anti-bigamy …

Person, State Or Not: The Place Of Business Corporations In Our Constitutional Order, Daniel J.H. Greenwood

Daniel J.H. Greenwood

Business corporations are critical institutions in our democratic republican market-based economic order. The United States Constitution, however, is completely silent as to their status in our system. The Supreme Court has filled this silence by repeatedly granting corporations rights against the citizenry and its elected representatives.

Instead, we ought to view business corporations, like municipal corporations, as governance structures created by We the People to promote our general Welfare. On this social contract view, corporations should have the constitutional rights specified in the text: none. Instead, we should be debating which rights of citizens against governmental agencies should also apply …

Justice-As-Fairness As Judicial Guiding Principle: Remembering John Rawls And The Warren Court, Michael Anthony Lawrence

Michael Anthony Lawrence

This Article looks back to the United States Supreme Court’s jurisprudence during the years 1953-1969 when Earl Warren served as Chief Justice, a period marked by numerous landmark rulings in the areas of racial justice, criminal procedure, reproductive autonomy, First Amendment freedom of speech, association and religion, voting rights, and more. The Article further discusses the constitutional bases for the Warren Court’s decisions, principally the Fourteenth Amendment equal protection and due process clauses.

The Article explains that the Warren Court’s equity-based jurisprudence closely resembles, at its root, the “justice-as-fairness” approach promoted in John Rawls’s monumental 1971 work, A Theory of …

Does It Matter How One Opposes Memory Bans? A Commentary On Liberte Pour L'Histoire, Robert Kahn

Robert Kahn

This paper examines Liberté pour l'Histoire, a group of French historians who led the charge against that nation’s memory laws, in the process raising unique arguments not found elsewhere in the debate over hate speech regulation. Some of these arguments – such as a focus on how the constitutional structure of the Fifth Republic encouraged memory laws – advance our understanding of the connection between hate speech bans and political institutions. Other arguments, however, are more problematic. In particular, Liberté historians struggle to distinguish the Holocaust (which is illegal to deny) from the Armenian Genocide (which is not). The Liberté …

Nothing To Do With Personhood: Corporate Constitutional Rights And The Principle Of Confiscation, Paul Kens Dr.

Paul Kens Dr.

In its 2010 decision Citizens United v. Federal Election Commission the Supreme Court overruled a federal statute that limited a corporation’s ability to pay for political advertising out of its general treasury funds. Those limits, it ruled, violated the corporation’s right to freedom of speech. The case has since become notorious for the widely held belief that, in doing so, the Court declared that corporations are “persons,” possessing the same constitutional rights as flesh and blood human beings. Four years later the Court seemed to expand on this conclusion when it ruled in Burwell v. Hobby Lobby that a general …

Free Exercise And The Definition Of Religion: Confusion In The Federal Courts, Mark Strasser

Mark Strasser

The United States Supreme Court has sent mixed messages about what constitutes religion for free exercise purposes. The Court’s failure to offer clear criteria has resulted in widely differing interpretations in the lower courts, resulting in dissimilar treatment of relevantly similar cases. Further, some of the circuit courts employ factors to determine what qualifies as religious that are much more restrictive than the factors employed by the Court.

This article describes some of the differing approaches to defining religion offered in the circuits, noting that one of the approaches adopted across a few circuits not only mischaracterizes the Supreme Court’s …

Definitions, Religion, And Free Exercise Guarantees, Mark Strasser

Mark Strasser

The First Amendment to the United States Constitution protects the free exercise of religion. Non-religious practices do not receive those same protections, which makes the ability to distinguish between religious and non-religious practices important. Regrettably, members of the Court have been unable to agree about how to distinguish the religious from the non-religious—sometimes, the implicit criteria focus on the sincerity of the beliefs, sometimes the strength of the beliefs or the role that they play in an individual’s life, and sometimes the kind of beliefs. In short, the Court has virtually guaranteed an incoherent jurisprudence by sending contradictory signals with …

The Doctrine Of True Threats: Protecting Our Ever-Shrinking First Amendment Rights In The New Era Of Communication, Mary M. Roark

Mary M Roark

The First Amendment provides that “Congress shall make no law . . . abridging the freedom of speech.” Such protection has withstood the test of time and is heralded as one of our most precious rights as Americans. “The hallmark of the protection of free speech is to allow ‘free trade in ideas’—even ideas that the overwhelming majority of people might find distasteful or discomforting." However, “[t]here are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem." One such proscribable form of speech is the “true …

Dogging Darwin: America's Revolt Against The Teaching Of Evolution, J. Herbie Difonzo, Ruth C. Stern

J. Herbie DiFonzo

Abstract

More than four in ten Americans believe that God created humans in their present form 10,000 years ago. American antagonism toward the teaching of evolution is deeply rooted in fundamentalist tradition and an aversion to intellectualism. These forces have combined to demonize Charles Darwin to such an extent that sectarian-based legal and political attacks on evolution show no signs of abating. Darwin’s day in court began in 1925 with the famous Scopes Monkey Trial. It continued into the 21^st century with Kitzmiller v. Dover Area Schools. Throughout, the core creationist agenda has remained the same, although an …

Can A One Star Review Get You Sued? The Right To Anonymous Speech On The Internet And The Future Of Internet “Unmasking” Statutes, Jesse D. Lively

Jesse D Lively

This Comment argues that the Supreme Court of Virginia should first reverse the Virginia Court of Appeal’s decision when it hears the Yelp case later this year. Secondly, the court hold that the Virginia statute for identifying persons communicating anonymously over the Internet violates the First Amendment's required showing of merit on both law and facts before a subpoena duces tecum to identify an anonymous speaker can be enforced. Lastly, it should adopt a new “unveiling standard” similar to the standards used in either Dendrite or Cahill. Part II examines the jurisprudential history of identifying anonymous Internet speakers in defamation …